Thou shalt not covet … thy neighbour’s house

August 31st 2015

A couple who had their builders copy the plans of a house in the same gated community have been slapped with court orders for infringing copyright.

The Bredens were the underbidders on a house that went to auction in a gated community at Port Douglas. So taken were they with the house, that they took the plans for the building to their own builders (James Dormer and Michael Clark), so they could make as exact a copy as possible on a block of land they had purchased in the same community. They paid $1,000,000 to have the copy built.

So taken were the Coles – who had successfully bid on the original house – with the plans for their house, that when they heard of the Breden’s plans, they bought the copyright in their house from the architect, so that they, and they alone, would be able to have such a house.

The Coles then warned the Bredens to stop – and when they didn’t, the Coles took copyright infringement action in the Queensland Supreme Court against both the Bredens and the Bredens’ builders.

Copyright owners who succeed in copyright infringement actions are usually awarded money by the court (either the profits made by the infringer or by way of compensation). Other remedies, however, are also available, such as injunctions and orders that infringing copies be handed over to the copyright owner (usually for destruction).

While the Queensland Supreme Court held that copyright in the plans had indeed been infringed, in n this case, the Court declined to order the demolition of the infringing house.

Instead, the Court found that it would be able to restore the copyright-owning Coles to the position they would have been in but for the infringement by ordering the Bredens to alter the appearance of the copycat house by:

removing dormer roofs;

replacing circular windows at the front of the house with square or rectangular windows; and

grinding, cutting away or removing the stone edge trim.

The Court stated that such orders would not be oppressive on the Bredens, given the likely cost of making those alterations judged against how much had been spent on building it.

The case – Cole v Dormer [2015] QSC 224 (4 August 2015) – is set to return to court on 28 August to hear argument on costs and on damages or account of profit. From the comments in the judgement concerning infringement, it is quite clear that the Bredens’ conduct was “flagrant” – they continued to build even after being warned their house would infringe copyright. It is therefore likely that, if the Coles elect to chase damages claims, the Bredens and/or their builders will (in addition to paying for the alterations to their house) have to pay significant “additional damages” to the Coles.